The Office of the British Columbia Registrar of Lobbyists has published a new interpretation that requires counting additional activities when determining whether an employer must register in-house lobbyists under the Lobbyists Registration Act. While the 100-hour threshold remains in place, the inclusion of more activity within the 100 hours will capture more employers and require lobbyist registration by more employers than before.
This new interpretation will be of interest to businesses, associations and other organizations conducting activity in British Columbia that do not currently register, as the threshold determines whether in-house lobbyist registration is required.
Registration of an employer's in-house lobbyists in B.C. is the legal responsibility of the president or CEO (known as the designated filer). Failure to register accurately, completely and on time may result in investigations, monetary penalties, and reputational damage.
Determining whether employees are in-house lobbyists in British Columbia
Under the B.C. Lobbyists Registration Act, one or more employees of an organization are considered in-house lobbyists if they lobby on behalf of the employer, and lobbying activities across the employer amount to a total of at least 100 hours in a 12-month period.
The activities of all employees, including those who do not lobby, must be included in determining whether the 100-hour threshold has been reached. Only those employees who communicate with public office holders must be named on the lobbyist registration.
Activities included in calculating the 100-hour threshold
Under the Lobbyists Registration Regulation (B.C.), counted toward the 100-hour is all time, including preparation time, that is "directly related and necessary for carrying out lobbying". This calculation has always been known to encompass activities such as preparation time, travel time, and time actually spent lobbying public office holders. The new interpretation includes, in addition, corporate functions and administrative work associated with lobbying.
The 100-hour threshold includes internal approvals and strategy meetings related to lobbying. It also includes time spent by contractors supporting lobbying activity and time spent negotiating those contracts.
Under the new interpretation, the following specific activities are now expressly included in the 100-hour threshold:
- Time spent deciding which public office holders to lobby
- Time spent negotiating contracts for services "related to the lobbying strategy"
- Time spent by service providers supporting the development of lobbying strategy (writers and graphic designers are referred to as examples)
- Human resources processes and time spent hiring staff to lobby
- Time spent on staff training related to lobbying
- Time spent on the internal approvals related to the development of lobbying strategies
- Time spent on internal approval processes and on developing a budget for a lobbying strategy
- Time spent monitoring and adjusting lobbying strategies
- Time spent by receptionists when setting up meetings with public office holders
Paradoxically, activities predating an organization's decision to lobby are "likely not" included in the 100-hour threshold calculation. This means that, arguably, preliminary strategic decisions taken before the official decision to begin lobbying may not count towards the threshold calculation, even if time spent on those same activities would count had they taken place after a decision to lobby had been made. A case-by-case legal determination would likely have to be made to pinpoint precisely when the decision to lobby had taken place, though, even then, some activities predating the decision could still be counted towards the threshold.
An additional complication is that the lobbying threshold is calculated on a 12-month basis, counting backwards from the day that the organization decides to lobby. Depending on the specific circumstances of each organization, organizations that believed they were operating below the 100-hour threshold may, under the new interpretation, find themselves unexpectedly having approached or even exceeded the limit. In this case, registration may be required.
Implications for CEOs
The primary implication for CEOs is that it is now easier for their businesses and societies to reach the 100-hour threshold. This means that the statutory requirement to file a lobbyist registration may apply to a CEO who previously thought that the organization was operating below the 100-hour threshold.
Any business or non-profit entitity that communicates, or intends to communicate, with British Columbia public office holders should re-evaluate its compliance with lobbying law. For organizations that do not maintain active in-house lobbyist registrations in B.C., this means calculating or re-calculating, based on the expanded list of included activities, proximity to the 100-hour threshold. (Similar thresholds, though subject to various interpretations, exist across Canada.)
As noted above, compliance with the B.C. in-house lobbyist registration requirement is the responsibility of the most senior officer of an employer, typically the president or the CEO. Contravention of lobbying law can have serious consequences for any organization.
Please contact either of the authors, or any member of our lobbying-law compliance team, for more information on the subject of this bulletin.